Srinagar: Special laws in force in the state, such as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 and the Jammu and Kashmir Public Safety Act, 1978 (PSA) have created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations, the UN’s Office of the High Commissioner for Human Rights has said in its 49-page report which was released earlier this month.
AFSPA 1990 was passed by the Parliament of India on 10 September 1990 but was “deemed to have come into force” retrospectively from 5 July 1990.
“This act grants broad powers to the security forces operating in Jammu and Kashmir and effectively bestows immunity from prosecution in civilian courts for their conduct by requiring the central government to sanction all prospective prosecutions against such personnel prior to being launched. It is almost identical to the Armed Forces (Special Powers) Act 1958 that is in force in several states of north-east India; however, a separate version of the same law had to be enacted specifically for Jammu and Kashmir due to its special status under article 370 of the Indian Constitution.”
Section 7 of AFSPA 1990 prohibits the prosecution of security forces personnel unless the Government of India grants a prior permission or “sanction” to prosecute. “This gives security forces virtual immunity against prosecution for any human rights violation.”
In the nearly 28 years that the law has been in force in Jammu and Kashmir, there has not been a single prosecution of armed forces personnel granted by the central government.
“In relation to this, the Indian authorities claim they follow a policy of “zero tolerance against human rights violations” and that military courts appropriately handle any allegations of human rights violations.”
Section 4 of AFSPA 1990 allows any personnel operating under the law to use lethal force not only in cases of self-defence but also against any person contravening laws or orders “prohibiting the assembly of five or more persons”. This provision, the report said, contravenes several international standards on the use of force and related principles of proportionality and necessity including the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which requires law enforcement officials to use firearms only as a last resort, and to use them with lethal intent only when “strictly unavoidable in order to protect life”.
